The Trial Of Lawyer Darboe

By Foday Samateh

It had all the makings of the Rivonia Trial. A tyrannical regime. A subservient judiciary. A famous defendant with a reputable standing. And a clear-cut moral crusade. Only the specifics were different. Mandela had been charged with treason for engaging in a sabotage bombing campaign to bring down Apartheid. To the white supremacist National Party, he was a terrorist who must be hanged. Darboe, on the other hand, was out on a peaceful demonstration on Kairaba Avenue. He was demanding the body of his political protege Solo Sandeng who had been murdered in NIA custody for leading a peaceful protest for electoral reforms, and the release of the rest of the Westfield protesters tortured with abandon in detention. To the criminal thug in the State House passing off as the President, Darboe was the criminal out to incite violence because he hadn’t applied for a permit which he was never going to be issued by the police, and therefore he must be thrown behind bars.
If Mandela had actually committed violence in the narrow and strict sense, although justifiably, Darboe’s crime was that he is a political foe of a despot who has been hellbent on persecuting him. From the start in both trials, conviction was a foregone conclusion. Mandela had to be found guilty and so was Darboe. Defendants never get acquitted in political trials in autocratic states. That would be too damaging to the regime. So justice in the legal sense becomes the first casualty of kangaroo proceedings.
What must such defendants do? Mandela and his fellows turned their arraignment into a political trial of Apartheid itself. They used their time in the dock to speak against the repressive laws that denied them freedom of expression and other democratic rights as citizens of South Africa. They questioned the legitimacy of the white minority rule and exposed its immorality and injustices. The trial became a publicity bonanza for their cause. The world became better informed about the situation in South Africa, which, more than anything else, saved their lives. Though they were said to be found guilty as charged, the judge gave them life imprisonment instead of sentencing them to death. South Africa hadn’t been the same again until the fall of Apartheid in 1994. And the vile rule would have ended much sooner if the Western powers hadn’t protected the government as an ally during the Cold War. Nonetheless, the Rivonia trial proved to be one of the most catalyst moments in the struggle for freedom in South Africa. The oppressed faced down the oppressor to challenge institutionalized injustice and racism with their vision for a democratic South Africa. Without the trial, it would be hard to imagine the Mandela the world came to know, admire and revere.
Darboe’s trial also offered such a defining moment for The Gambia. But sadly, the legal team walked out of the courtroom. The most charitable thing one can said about the walkout is that whatever the bet was it didn’t pay off. If the reason was to tug at the heartstrings of Yahya Jammeh’s conscience, it has long since been clear that the “sadist” has no scruples. If it was to bring the case to a standstill, it went on nonetheless. If it was to demonstrate that the outcome of the case had already been predetermined and there was no point in going along with the process, those facts didn’t stand in the way of Justice Eunice O. Dada Oshin — a judicial Judas eager to cash in her thirty silvers — to claim that the trial was fair and Darboe was guilty as charged. The walkout proved to have been rather advantageous to the regime whose sole purpose has always been squelching any opposition to its authoritarian tendencies.
As stated earlier, there was no question that Darboe was going to get convicted in one form or another. But the defense team walking out only made the inevitable too easy for the regime and the judge. No doubt that the lawyers acted on the best of intentions. Still, the consequence showed that the move had the effect of a surrender. If the wrongful incarceration of Darboe is a tragedy, letting the regime get its way in court unchallenged in such a monumental case is, arguably, the greater tragedy.
Though the regime’s overriding motive in the case was to imprison a political enemy, the trial at its core was about the fate of the judiciary itself. Of the three branches of the government, Yahya Jammeh has all but declared the Executive as his personal fiefdom. He has abused the Legislature into his cheering apologists. And he has been using the Judiciary to give legal sanctions to his lawlessness. In reality, the courts are just an afterthought for him. Only when he cannot disappear or detain his targets indefinitely does he haul them on trumped-up charges before puppet judges to lock them up.
The fact that trials offer some form of process for the accused to defend themselves or make their case to the public, if not to the judges, the proceedings are vital for the fight for freedom. The courts are thus the last venue for victims to give voice to the truth and challenge the regime of injustice at the same time. And like in any struggle for freedom anywhere, lawyers are not just advocates but also masterminds in undermining the underpinnings of oppression. They are simply indispensable.
The blatant acts of obstruction of justice the ten-member legal team faced should not make them walk out, however compelled they might have felt to do so. That was exactly what the regime wanted — to reward its bad behaviors with what amounted to unwitting acquiescence. That in itself made it the winner, albeit ignobly. Suppose the judge had allowed Darboe to hire a new legal team, what reason exits under the sun to think that the regime would cease and desist from its underhanded and flagrant subversion of justice? Suppose Darboe wins an appeal for a new trial, would the case not be back to status quo ante? And more important, would the initial widespread interest and enthusiasm be recouped for the new trial?
Even if Darboe had consented to the walkout, it was still ill-advised — namely, a misreading of the situation. This being a political trial, he needed all the help he could get to take on the regime as such for the sake of everything he believes in for the country. If Darboe, a celebrated lawyer himself, and ten of the best lawyers in the country passed up the opportunity to turn the tables on the regime in a courtroom when the stakes were so high, what hope remained for a meaningful confrontation of any kind anywhere else?
Since the same lawyers were more or less involved in the defense of the Westfield protesters as well, there was an outside chance that if they had done everything they could to fully coordinate their strategies for both cases as one big political trial, the regime might be forced to withdraw the charges. Or more likely, Yahya Jammeh might make arrangements for some imams to come pleading to him to “pardon” the defendants, as he so often does when he needed to save face. Instead of just playing defense to the prosecution like in a normal trial, the lawyers should have gone on the offense by hitting the regime on all fronts simultaneously. For instance, when Justice Ottaba, the first presiding judge, rejected their oral arguments for Darboe and his co-defendants to be granted bail and required the lawyers to submit written applications instead, that should have been an occasion for a press conference to denounce the ruling. Yes, that would be antagonizing the judge but had anyone been counting on the regime’s paid hireling to be fair much less friendly to the defense?
When the Director of Prisons wouldn’t allow the lawyers and the family members to visit the defendants in remand in clear violation of the judge’s order, that should have also been another occasion for a press conference to declaim the obstruction of justice. Every effort should have been made to ensure that the director of prisons was cited for contempt of court and for the family members to sue him for denying them their right to visit their loved ones. Every court proceeding should have been followed with a press conference on the grounds of the courthouse to explain what transpired in violation of the norms and conventions of a fair trial. Also, the lawyers should have been prepared to appeal every procedural ruling against the defendants to gum up the works so that the regime would never again do political witch-hunts through baseless prosecutions. And any threats the goons of the regime made to the lawyers should be shared with the public at the press conferences.
Every prosecution witness should have been subjected to the most hostile cross-examination for the purposes of humiliating them and the regime. The defense should call the Inspector General of Police as an adversarial witness on the permit issue, and assemble an array of expert and legal witnesses to go after the permit law as an undue infringement of constitutional rights. As for the Westfield protesters specifically, they should have also sued the Inspector General of Police for not safeguarding their safety and security when he arrested them only to hand them over to the NIA to get tortured. And they should have sued the Director General of the NIA as well for the tortures they had been subjected to under unlawful detention in his custody in clear violations of their constitutional and human rights.
Maybe these had been the plan all along. If not, all the above should have been part of the plan since they are anything but far-fetched. The habeas corpus writ on behalf of Solo Sandeng, for example, was what forced the regime to confirm for the record that he had died in NIA custody. Bravo to the lawyers on that score. That’s how legal precedents are set. From now on, families can seek judicial redress on behalf of anyone detained beyond the maximum time the Constitution stipulates. Every boundary must be challenged to compel the regime into compliance with the laws. Any successful suit will be good for the defendants, validate the intended role of the judiciary, and protect the constitutional rights of citizens from the regime’s lawlessness.
Imagine the remote chance of the Director of Prisons, the Inspector General of Police, and the Director General of the NIA subpoenaed to appear before the court to answer for their abuses of power. Imagine them in the dock and the legal team taking turns to rough them up on the law. And imagine them and the torturers of the Westfield protesters facing their victims in the courtroom. That would be all the justice anyone could ask for to end the culture of impunity. That was supposed to be the great blessing in disguise in the trial of Lawyer Darboe. But because the lawyers walked out, we will never know what good the trial would have done for the jurisprudence.
None of the above might come to past even if the lawyers hadn’t walked out and had given the trial their all. We will never know that, too. But even the attempt to square off against the injustice in the legal arena would certainly be a rude awakening to the regime. As a consequence of no enduring concerted action to give a judicial body blow to the regime, the despot will continue to do what he does best: trample on the rights of people with impunity. That is not only terrible prospect for future victims and targets, it renders the judiciary and the legal profession itself more and more functionally irrelevant. Worst still, the rule of law, or what’s left of it, will require an epitaph.
Lest the concern of this article is misconstrued, all the blame for the current state of affairs in The Gambia must be assigned to the regime. Yahya Jammeh and his minions and stooges are the villains. But saying so ad infinitum would not bring about change if the last two decades are anything to go by. Fighting despots is hard, because they are devious and devoid of moral compunctions. And the fight is harder still when the efforts and strategies are wanting.
Hence, a word about the media. The coverage of the trial both on the ground and in the online papers didn’t rise to the occasion. One cannot sympathize more with the independent national papers for the risks they confront in doing their jobs. But the trial wasn’t one of those situations in which prudence demanded extreme caution. It wasn’t an investigative assignment. It wasn’t exposing a scandal about the regime. Nor was it a human-interest story to depict the regime in an unsavory light. It was the safest historic story fate could throw in journalism’s way. Reporters elsewhere have laid claim to fame in far less significant moments. Even more important in those career-making instances, the reporting brought about greater public awareness to the issue in question. In this trial, however, the reporting on the ground didn’t elevate anywhere close to that level. It was apparently an exercise in too much self-censorship. In addition, the failure to cover the trial in a clear and comprehensible reporting diction and style that provided meaningful background and context, and the failure to demonstrate basic understanding of court proceedings were, without mincing words, abdications of responsibility. The regime may possess the brute force to violate our rights and freedoms. But one thing it cannot do is deprive us our ability for competence. That’s not elitism. It’s plain and simple fact.
The online media face a different set of challenges, including tough logistics to get news from a poor, small nation under the siege of fear. Without them, there will be effective news blackout in fulfillment of the regime’s wish. And on any given day, they do their best to shed light on the corruption and abuse of power. However, if the trial attested to their dedication and tenacity, it also put a glaring spotlight on their shortcomings. They helped create a buzz of excitement and outrage throughout the process. That was necessary but not enough. The clamor and rage couldn’t sustain themselves to substantive ends.
Going into the trial, the broad impression in the online papers and the social media seemed to be that Darboe would prevail. That was quite mistaken for people who spend so much of their time unmasking the devilish malfeasances of the regime. For every proceeding, they did a marvelous job reporting on the crowds outside the courthouse, but not so much about what actually happened in the trial itself: how justice was being perverted on the regime’s behalf. It was little surprise that when the corruptly ordained verdict was rendered, a thick cloud of disbelief and disillusionment descended. For people who are supposed to take over the reins when the regime falls, such a miscalculation wasn’t exactly inspiring.
Among the truly inspiring episodes from the online media was the interview Fatou Camara of Fatu Network had done with Justice Ottaba. After she had been done grilling him and putting the fear of the international community in him, the weak-hearted man from Nigeria recused himself from the case. Ironically, the regime doubled down by giving the case to Justice Dada Oshin, the hardhearted woman from Nigeria. That took nothing away from the interview and the journalistic resourcefulness that had gone into landing it. In terms of impact, the interview played second fiddle to only the courage and zeal of UDP supporters who thronged the highway, swarmed the Arch, and congregated at the courthouse every trial day.
Those old men and old women and youths from all over the country are not what Thomas Paine decried as “summer soldiers and sunshine patriots.” They are valiant foot soldiers against tyranny and steadfast vanguards for democracy and justice. Lawyer Darboe wrote that he wasn’t embarrassed by the sinful verdict. He was supremely right because his legion of supporters stood with him even when the fight got tougher. In spite of everything that happened or should have happened, the party faithful’s gallant show of loyalty to their leader counts tremendously.